Volume 58, Issue 6 - April 2006

Young Mr. Rehnquist's Theory of Moral Rights--Mostly Observed

William Rehnquist had so long and effectively played the role of fair-minded Chief Justice - his ideological opposite William Brennan calling him "the best chief under whom [he] served" - that sometimes his substantive legacy is overlooked. It should not be. Coming to the Court in 1972 from the Office of Legal Counsel, he began as a lone dissenter, but by the time of his death in 2005, he had brought at least a slim majority of the Court around to his own thinking. His jurisprudential perspective emphasized a government of enumerated and separated power, where state and local authority was respected, and the judiciary reserved its authority to a historically faithful understanding of the Bill of Rights and the Fourteenth Amendment.

The Chief was a gracious and unassuming man who hid beneath a shy, quiet demeanor, an ironic sense of humor, and wit. He enjoyed history, and during the last dozen years of his life, he authored four volumes which achieved wide readership in the legal community and beyond. The point of reference of this Article, however, begins much earlier, with the twenty-four-year-old Bill Rehnquist pursuing a master of arts degree in political science at Stanford. In a previously unpublished, but truly gifted study, Rehnquist works out an elaborate theory of political right, which would significantly shape his subsequent law study and his extended thirty-three-year tenure on the Supreme Court. More detail of his theory is below, but it will be quickly perceived that Rehnquist, the philosopher, unlike his later judicial self, was neither a positivist nor a moral relativist...